United States of America v. Cesar Quintero-Felix

The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Movant, Cesar Quintero-Felix, seeks relief under 28 U.S.C. § 2255 from a sentence of 188 months imprisonment after Quintero-Felix pleaded guilty to one count of conspiracy to distribute and to possess with intent to distribute methamphetamine. Movant raises three claims for ineffective assistance of counsel in his motion; specifically: (1) counsel was ineffective in permitting Movant to waive his right to appeal and collaterally attack the judgment in his plea agreement ("Claim I"); (2) counsel was ineffective in failing to inform Movant, a Mexican national in the United States illegally, of the collateral immigration consequences to his guilty plea ("Claim II"); and, (3) counsel was ineffective in failing to properly investigate the factual and legal basis for a downward departure in Movant's sentence under the "Safety Valve" provision. Respondent filed an amended Answer in opposition to the motion, waiving any argument that Movant had waived his right to file a § 2255 motion in his guilty plea and arguing that Movant's claims should be denied on the merits without a hearing. Movant did not file a reply to the Answer.

I. FACTUAL AND PROCEDURAL BACKGROUND

Movant was one of nine persons named in an eighteen count indictment which issued in December of 2007. See Docket No. 34. Movant was charged with one count of conspiring to distribute methamphetamine, 21 U.S.C. §§ 846 & 841, one count of distributing methamphetamine, id. § 841(a)(1), and five counts of using a communication facility in furtherance of a drug offense, id. § 843(b). On January 23, 2009, Movant entered a guilty plea to one count of conspiracy to distribute and possess with the intent to distribute methamphetamine pursuant to the terms of a written plea agreement. See Docket Nos. 116 & 119. By the terms of the agreement, the remaining counts were dismissed. By signing the plea agreement, Movant admitted that the factual basis attached to the plea agreement was accurate. Docket No. 116 at 2, Ex. A. At the change of plea hearing the factual basis for the plea was read in open court and Movant agreed that it was correct. See Docket No. 280, Ex. D (Transcript of Change of Plea Proceeding) at 24-27. The factual basis for the plea states as follows:

The defendant Cesar Quintero-Felix and others, including but not limited to Armando Sanchez, Felix Jauregui, James Honeycutt and Genaro Luna, were members of a conspiracy to distribute over 50 grams of actual methamphetamine in the Eastern District of California.

Intercepted telephone calls, surveillance and controlled purchases showed that Quintero-Felix supplied methamphetamine to Felix Jaurequi, Genaro Luna and Eric Brooks, among others. For example, on Semtember 13, 2007, a confidential source (CS) working with the DEA placed a recorded call to Jauregui at 4:11 pm to place an order. Five minutes later Jauregui called Quintero-Felix, who said he would "come with doughnuts." Quintero-Felix arrived at the body shop at 4:46 pm and handed Jauregui a bag. At 5:07 pm, Jauregui told the CS to come over, and at 5:22 pm, the CS arrived at the body shop and purchased a quarter pound of methamphetamine from Jauregui. Similarly, on October 1, 2007, Jauregui provided approximately a quarter pound of methamphetamine to co-defendant Jesus Avila, who in turn supplied it to co-defendant Aid Luangrath. Intercepted telephone calls and surveillance establish that this methamphetamine was provided to Jauregui by Quintero-Felix. This methamphetamine was seized from Luangrath, analyzed, and found to consist of 67.3 grams of actual methamphetamine. An additional 255.2 grams of actual methamphetamine was seized from Jauregui's residence / place of business on December 12, 2007.

Intercepted calls illustrated the fact that Quintero-Felix provided methamphetamine to both Jauregui and Luna on credit, known as a "front," with the expectation that he would be repaid with receipts from subsequent sales. Intercepted calls also established that Quintero-Felix was providing methamphetamine to co-defendant Eric Brooks, and that co-defendant Armando Sanchez aided Quintero-Felix in his distribution activities. Finally, intercepted calls indicated that co-defendant James Honeycutt stored methamphetamine for Quintero-Felix at a residence in Stockton. For example, on November 23, 2007, Quintero-Felix called Honeycutt and told him to stay in the house and not go on the street. Quintero-Felix told Honeycutt not to sell "it" to different people and expressed concern people might think he had "it" in the house. Quintero-Felix told Honeycutt to put something in the door, and Honeycutt said he had a broom handle. In this call, Quintero-Felix was telling Honeycutt to take precautions to safeguard the methamphetamine stored at his residence. When Honeycutt's residence was searched on December 12, 2007, officers found a small amount of heroin, a plastic scale with methamphetamine residue, and plastic packaging material that also contained methamphetamine residue.

Docket No. 116, Ex. A.

In addition to an agreement with regard to pleading guilty, the plea agreement also contained a waiver of appeal and collateral attack and set forth the parties obligations with regard to sentencing. The government agreed to recommend that Movant be sentenced to the low end of the applicable guideline range as determined by the United States Probation Office. The government also agreed not to oppose a sentence reduction for acceptance of responsibility, that it could argue for a enhancement due to Movant's role in the offense (up to three levels), and that it would not seek any additional enhancements. Movant was allowed to argue against the enhancement for his role in the crime as well as argue in favor of a reduction due to his family ties and responsibilities but agreed not to seek any additional sentence reductions.

Consistent with the plea agreement, on August 14, 2009, Movant was sentenced by the court to the low end term of 188 months. This included a three level enhancement due to Movant's role in the offense and a three level reduction due to Movant's acceptance of responsibility. On August 18, 2010, Movant filed the instant motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.

II. LEGAL STANDARD FOR § 2255 MOTION

A motion to vacate, set aside, or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2555 entitles a prisoner to relief if "the court finds . . . [t]here has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and the records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. See United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996); United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). Mere conclusory statements or statements that are inherently incredible in a § 2255 motion are insufficient to require a hearing. See United States v. Howard, 381 F.3d 873, 877, 879 (9th Cir. 2004); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980). While a movant is not required to allege facts in detail, he must make factual allegations. See Hearst, 638 F.2d at 1194. Accordingly, an evidentiary hearing is only required if: (1) a petitioner alleges specific facts, which, if true would entitle him to relief; and (2) the petition, files, and record of the case cannot conclusively show that the petitioner is entitled to no relief. See Howard, 381 F.3d at 877.

III. ANALYSIS OF PETITIONER'S ...

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